by Duane Stjernholm
AGENCY: Agricultural Marketing Service USDA
ACTION: Interim final rule with request for comments.
Please Note: Page Numbers reference the Federal Register
Thank you again USDA for your efforts in formulating the IFR and allowing us to make comments. We have previously made comments on this issue with Comment Tracking Number: 1k3-9dbc-34z8. Please consider the comments below as additional comments on the IFR.
We the People would again like to remind all those involved and working in government at all levels, including Government Employees, Elected Officials and Government Contractors, that you are not paid by special interests, lobbyists, campaign contributors, and specific political parties, but by the taxes of all hard working US Citizens and you need to be attentively responsive to all of our concerns.
For reference and clarification our first comments require “A Legal Status of US Cannabis/Hemp History Review”. We have posted this review at the end of these comments. We have cited the review below as a courtesy to remind you that hemp stalks and sterile seeds are exempt from Schedule I restrictions, just as they have been since 1937. Thus, the DEA has absolutely no statutory jurisdiction regarding the handling of stalk and sterile seeds. It is a blatant violation of Producer’s Rights by the DEA to mandate that Producers have to destroy their entire crop because the flower material tested over .3% THC. We are hereby putting you on notice that we will defend these Statutory Rights with every legal mechanism available if these exemptions are not included in the IFR. In addition, the language for the destruction of entire crops must be eliminated from the IFR to be compliant with current US statutes and Internal DEA Directives. The Legal recourses available to us if this is not changed in the IFR include redress of grievances and financial compensation for all Producers who were illegally mandated by the DEA to destroy their entire crops since the 2014 Farm Bill. We demand that these regulations be based on facts and common sense in order to promote the cultivation of Hemp in such a way as to not be in contradiction with Executive Order #13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539).
It is pretty ridiculous that we are even having to have this discussion as Medical and Recreational cannabis Producers right down the country road can legally grow high THC cannabis (often over 20% THC) while we are discussing tenths of percentages of THC for hemp. Even at a level of 5 times the .3% directive, hemp at 1.5% THC would get no one high unless they decided to make a rope out of it and climb a tree. Even at the highest levels of THC, cannabis has never killed anyone so what exactly are these onerous DEA regulations protecting us from? Hemp is one of the few plants on our planet that can provide food, shelter, clothing, natural medicine and fuel. Why are there such draconian regulations regarding this versatile plant unless its production is an economic threat to big corporations’ hidden agendas, just like when it was effectively made illegal in 1937. Yes, every substance can be abused. You can commit suicide with water, but we are certainly not going to make water illegal because of its potential for abuse. We need to focus on the positive and practical uses of the hemp plant and not its artificially manufactured, hypothetical, governmental, and “Reefer Madness” detriments. With this in mind we respectfully request that testing procedures must be amended in the IFR as we proposed in our prior comments. To iterate a summary of our previous comments, “since Hemp, as defined in the 2018 Farm Bill, is no longer a controlled substance, the utilization of homogenized sample testing is virtually mandated to be the prevailing and preferred testing protocol”. As outlined in our review below, because the stalks and sterile seeds are exempt from Schedule I prohibitions, they can never be legally mandated to be destroyed. And, as we have stated in our previous comments, there are 21st century options to assure that the THC in any “hot” hemp can be extracted and isolated, or, alternatively, material tracking of the harvested crop can be instituted so the plants can only be utilized for non-ingestible uses at approved whole plant processing facilities.
This correlates with our next comments regarding hemp use as animal feed. We have scoured the available literature and find that there are no significant detrimental effects from feeding hemp to animals. Animals, like humans, have an endocannabinoid system (ECS). The ECS is the natural, balanced condition that optimally supports life. When CBD interacts with the ECS, it further reinforces the proper balancing functions within the body and its major systems. (Source: https://www.holistapet.com/potential-side-effects-of-cbd-for-dogs-and-cats/)
The process for adding substances to the approved substances list of the Association of American Feed Control Officials (AAFCO) is very onerous and burdensome and to get hemp on this list will take years as well as substantial funding for all the necessary approved trials for all species of animals. Our question is, because of the centuries of history of the hemp plant being safely used as animal feed and the positive benefits seen from the use of hemp as animal food by people currently doing it around the world, why is hemp even on this list? From all available sources we have looked into, prior to the 1937 Marihuana Tax Act hemp was an unregulated animal food. Because of expediency due to the current high suicide and bankruptcy crisis of American Producers, we are compelled to affirm that we will advise our producers that it is, in our opinion, permissible to feed hemp to animals as there is absolutely no scientific data to prove that it causes significant harm. The government has not shown any valid reasons why it is prohibited, and in fact, the government cannot show this because there are no compelling or scientifically proven justifications to show that it is detrimental throughout recorded animal consumption history. We have no good reason to go through the expensive process of proving that hemp is safe as animal fodder if this exemption is not included in the Final Rules. It is incumbent on the USDA, the FDA, and the DEA, not citizens, to prove it is harmful to animals. There are no reasonable scientific justifications for keeping hemp off the list and it should be added to the approved Animal Food Lists immediately. Hemp seed is already approved for humans, and its consumption has never caused any harm and in fact shows many benefits. So, why is it not okay for animals? We would easily win this case in an impartial and rational court of law because the government has absolutely no compelling evidence to prove otherwise. The fact that hemp is not on the approved animal food list is an illegal, blatant, unjustified restraint of trade and is in contradiction with Executive Order #13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539).
As per the history research below, sterile hemp seeds, like stalks, have never been on CSAs Schedule I list. However, the seeds cannot be sterilized until they are harvested so they must be allowed to reach full fruition and proper moisture content for harvesting to minimize the negative effects of mold and other pathogens, and also to attain maximum nutritional and industrial value. The timing of when harvest needs to occur is highly variable and dependent on a number of extraneous variables like temperature, precipitation, growth period, amount of sunlight, humidity, etc. To enact the IFRs with proper changes, we must have the assurance that the harvest of mature seeds is preformed at the most optimum time and is not highly compromised by erroneous, egregious, burdensome and unnecessary pre-testing regulations.
Hemp, like all American Citizens, must be presumed to be innocent until proven guilty. It is the burden of government to prove this guilt, not the unjustified governmentally manufactured onerous encumbrance of US Citizens to prove its innocence. We would like to believe that the USDA, the FDA, the DEA, and all other government agencies want every US Hemp Producer to be successful. Our hope is that your actions in modifying and approving the IFRs don’t impel us to resort to any drastic Legal and Jurisdictional actions as we’ve outlined above. That path does not quickly move the Hemp Industry forward. Our overriding mantra is collaboration in making the US Hemp Industry the best it can be, and by incorporating these necessary and vital changes to the IFR before they become the Final Rules, the governmental agencies involved will demonstrate the good faith and pragmatism of all government agencies in aligning with We the People’s collective and collaborative goals in promoting the success of Industrial Hemp.
Thank you again for allowing us to comment and we pray that you take these comments to Heart for the Greatest and Highest Good!
Co-Founder and Operator
Colorado Hemp Processing Cooperative
713 Cimarron Ave.
La Junta, CO 81050
A Legal Status of US Cannabis/Hemp History Review:
When “Marihuana” was first “taxed” by the “Marihuana Tax Act of 1937 ” the definition of “marihuana” was listed in Chapter II, Section 1 (b) and read: “The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivatives, mixture, or preparation of such plant, its seeds or resins; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.” (Source: http://www.druglibrary.org/schaffer/hemp/taxact/mjtaxact.htm)
In 1969, Leary v. United States, 395 U.S. 6, a court case was filed against Timothy Leary, a professor and activist for the possession of marijuana in violation of the Marihuana Tax Act. Leary challenged the act on the ground that the act require self-incrimination with violated the Fifth Amendment. The unanimous opinion of the court was penned by Justice John Marshall Harlan II and declared the Marihuana Tax Act unconstitutional. Congress responded shortly thereafter by replacing the Marihuana Tax Act with the newly written Controlled Substances Act (CSA) while continuing the prohibition of certain drugs, including marijuana, in the United States. (Source: https://en.wikipedia.org/wiki/Leary_v._United_States)
The Controlled Substances Act placed all substances which were in some manner regulated under existing Federal Law into one of five schedules. This placement is based upon the substance’s medical use, potential for abuse, and safety or dependence liability. In determining into which schedule a drug or other substance should be placed, or whether a substance should be decontrolled or rescheduled, certain factors are required to be considered. These factors are listed in Section 201 (c), [21 U.S.C. § 811 (c) of the CSA as follows:
Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter. (Source: https://www.dea.gov/controlled-substances-act)
Federal policies, tightened by the Controlled Substances Act of 1970, virtually banned the production of industrial hemp during the war on drugs. According to an industry group, “the 1970 Act abolished the taxation approach [of the 1937 Marijuana Tax Act] and effectively made all cannabis cultivation illegal”. The Drug Enforcement Administration (DEA) refused to issue permits for legal hemp cultivation and held that, since industrial hemp is from the same species plant as prohibited cannabis (despite its being of lower THC yield), both were prohibited under the Controlled Substances Act. In the words of a 2015 PBS NewsHour segment on hemp, “[t]o the federal government, hemp is just as illegal as marijuana”, and according to Newsweek, “all cannabis sativa—whether grown to ease chronic pain, get stoned or make rope—is a schedule I controlled substance“. Agricultural hemp was allowed on an experimental basis by federal law under the Agricultural Act of 2014 (farm bill). Under the 2018 United States farm bill, commodity hemp production was federally legalized.
In 2004, the U.S. Court of Appeals for the Ninth Circuit enjoined DEA from enforcing certain regulations with respect to tetrahydrocannabinols (THC). See Hemp Industries Ass’n v. DEA, 357 F.3d 1012 (9th Cir. 2004). The government did not seek Supreme Court review of that decision. In response to various inquiries, DEA thereby issued to DEA personnel the following internal directive on how to carry out their duties in light of the Ninth Circuit’s decision. “The Ninth Circuit enjoined enforcement of what is now 21 C.F.R. § 1308.11(d)(31) (drug code 7370) with respect to products that are excluded from the definition of marijuana in the Controlled Substances Act (CSA). DEA thus does not enforce that provision as to such products. Consistent with the Ninth Circuit’s decision, DEA does not enforce 21 C.F.R. § 1308.35. Products and materials that are made from the cannabis plant and which fall outside the CSA definition of marijuana (such as sterilized seeds, oil or cake made from the seeds, and mature stalks) are not controlled under the CSA. Such products may accordingly be sold and otherwise distributed throughout the United States without restriction under the CSA or its implementing regulations. The mere presence of cannabinoids is not itself dispositive as to whether a substance is within the scope of the CSA; the dispositive question is whether the substance falls within the CSA definition of marijuana.”
In the Title 21 Code of Federal Regulations, Part 1308 – Schedules of Controlled Substances there is a list of exempt cannabis plant material, and products made therefrom that contain tetrahydrocannabinols. It reads as follows:
§1308.35 Exemption of certain cannabis plant material, and products made therefrom, that contain tetrahydrocannabinols.
(a) Any processed plant material or animal feed mixture containing any amount of tetrahydrocannabinols (THC) that is both:
(1) Made from any portion of a plant of the genus Cannabis excluded from the definition of marijuana under the Act [i.e., the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination] and (2) Not used, or intended for use, for human consumption, has been exempted by the Administrator from the application of the Act and this chapter.
(b) As used in this section, the following terms shall have the meanings specified:
(1) The term processed plant material means cannabis plant material that has been subject to industrial processes, or mixed with other ingredients, such that it cannot readily be converted into any form that can be used for human consumption.
(2) The term animal feed mixture means sterilized cannabis seeds mixed with other ingredients (not derived from the cannabis plant) in a formulation that is designed, marketed, and distributed for animal consumption (and not for human consumption).
(3) The term used for human consumption means either:
(i) Ingested orally or (ii) Applied by any means such that THC enters the human body.
(4) The term intended for use for human consumption means any of the following:
(i) Designed by the manufacturer for human consumption; (ii) Marketed for human consumption; or (iii) Distributed, exported, or imported, with the intent that it be used for human consumption.